U.S. District Judge Donald Molloy did not mince words in a ruling issued yesterday that upheld congressional authority to delist the gray wolf in the Northern Rocky Mountains.
“If I were not constrained by what I believe is binding precedent from the Ninth Circuit, and on-point precedent from other circuits, I would hold Section 1713 is unconstitutional because it violates the Separation of Powers doctrine,” Molloy said in his order. The rider had invalidated his own decision that found the Fish and Wildlife Service’s partial delisting of the Northern Rocky Mountain DPS to be unlawful.
He called the rider “a tearing away, an undermining, and a disrespect for the fundamental idea of the rule of law.”
Those quotes come from a Center for Biological Diversity press release issued late yesterday after Molloy issued his verdict.
Here’s another: The rider “sacrifices the spirit of the ESA to appease a vocal political faction, but the wisdom of that choice is not now before this Court.”
More excerpts on the way…
Order from CBD page
Molloy issued a 35-page order the same day after his ruling on the constitutional issue. In it, he (1) found that Defenders of Wildlife, et al.’s ESA claims over the delisting were unripe, and (2) ruled against the plaintiffs on their NEPA claims (Defenders of Wildlife v. Hall, 08-14-M-DWM, D. Mont.)
Because of the congressional action allowing the delisting of wolves in Idaho and Montana, Molloy said “[t]he only remaining wolves who might potentially be affected by the challenged 2008 10(j) rule are in three or four packs located on Wyoming’s Wind River Indian Reservation. Accordingly, the analysis of the Federal Defendants’ jurisdictional challenges must be confined to the effects of 2008 10(j) rule as applies to management of the wolf populations on the Wind River Indian Reservation.”
Missoulian coverage (by Rob Chaney). CBD Executive Director Kieran Suckling tells Chaney, “If you have to lose a court case, this is about the best possible way to do it. He lays out the pathway for environmentalists to appeal the decision to the Ninth Circuit and have it overturned.”
AP story, which modifies CBD’s headline slightly: “Judge reluctantly upholds law stripping Northern Rockies wolves of endangered species status,” instead of “Court reluctantly denies challenge to congressional rider that stripped wolves of protection ”
New West’s take links to a story in the Lewiston Tribune that quotes Suckling saying, ““I’ve never seen anything like it [Molloy's ruling]. He is not only intimating the wolf rider is unconstitutional and the 9th Circuit is wrong but he is laying out a road map on how to appeal his own ruling and take it all the way to the Supreme Court.”
Legal Planet analysis of the ruling and what might happen down the road (by Holly Doremus, UC-Berkeley)
Section 1713 is in this spending bill: http://www.gpo.gov/fdsys/pkg/BILLS-112hr1473enr/pdf/BILLS-112hr1473enr.pdf Here is the language:, which essentially turns back the clock to a time when Molloy’s invalidation of the partial delisting had not taken place:
Before the end of the 60-day period beginning on the date of enactment of this Act, the Secretary of the Interior shall reissue the final rule published on April 2, 2009 (74 Fed. Reg. 15123 et seq.) without regard to any other provision of statute or regulation that applies to issuance of such rule. Such reissuance (including this section) shall not be subject to judicial review and shall not abrogate or otherwise have any effect on the order and judgment issued by the United States District Court for the District of Wyoming in Case Numbers 09–CV–118J and 09–CV–138J on November 18, 2010.